STATE OF NEW JERSEY VS. P.S. (12-11-1535, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1782-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
P.S.,1
Defendant-Appellant.
_________________________
Submitted January 28, 2019 – Decided February 15, 2019
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 12-11-
1535.
Joseph E. Krakora, Public Defender, attorney for
appellant (Durrell Wachtler Ciccia, Designated
Counsel, on the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).
1
We use initials to protect the privacy of the victim.
PER CURIAM
Defendant appeals from an August 31, 2017 order denying his petition for
post-conviction relief (PCR). Defendant maintains that his trial counsel
rendered ineffective assistance. Judge Jeanne T. Covert, who had tried the case,
entered the order and rendered a thorough written opinion. On appeal, defendant
argues:
THE [PCR] COURT ERRED IN DENYING
DEFENDANT'S REQUEST FOR AN EVIDENTIARY
HEARING.
We conclude that defendant's argument is without sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially
for the reasons given by Judge Covert, and add the following brief remarks. 2
A defendant is entitled to an evidentiary hearing only when he "has
presented a prima facie [case] in support of [PCR]," State v. Marshall, 148 N.J.
89, 158 (1997) (first alteration in original) (quoting State v. Preciose, 129 N.J.
451, 462 (1992)), meaning that a "defendant must demonstrate a reasonable
2
In his merits brief, defendant briefly claims, for the first time, that appellate
counsel rendered ineffective assistance. We conclude that such a contention is
without merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).
Nevertheless, we considered that argument on direct appeal. State v. P.S., No.
A-3442-13 (App. Div. Nov. 4, 2015) (slip op. at 11). As such, defendant's claim
is barred procedurally. R. 3:22-5; see also State v. Marshall, 173 N.J. 343, 350-
53 (2002).
A-1782-17T4
2
likelihood that his . . . claim will ultimately succeed on the merits." Ibid. For a
defendant to obtain relief based on ineffective assistance grounds, he is obliged
to show not only the particular manner in which counsel's performance was
deficient, but also that the deficiency prejudiced his right to a fair trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v. Fritz, 105
N.J. 42, 58 (1987). We conclude that defendant failed to demonstrate a
reasonable likelihood that his PCR claim will ultimately succeed on the merits.
And we conclude further that defendant has failed to satisfy either prong of
Strickland.
Affirmed.
A-1782-17T4
3